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Jun 16, 2020

Aird & Berlis Successfully Resists Summary Judgment Motions in Lawyer Negligence Case

Timothy J. Hill and Vedran Simkic

The corporate plaintiffs, represented by litigation lawyers Tim Hill and Vedran Simkic, successfully resisted two summary judgment motions brought by the defendant law firms seeking a dismissal of the underlying professional negligence action. The action arises from a lawyer’s alleged failure to advise the plaintiffs in a timely fashion of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) (the “AWA”).

The moving parties attempted to argue that any obligation to advise regarding the AWA fell outside of the scope of the lawyer’s retainer. In rendering her decision, The Honourable Justice Tranquilli noted that the plaintiffs had filed an uncontradicted expert report in support of their position and she accepted Aird & Berlis’ submissions that the scope of retainer was an issue for trial, further noting that a lawyer’s duties may in any event extend beyond the four corners of the scope of retainer.

This case is a good reminder that although the court has wide ranging powers on a motion for summary judgment, it will be reluctant to grant the motion if there are material facts in dispute. It also highlights the importance of expert evidence in technical matters, such as a claim for professional negligence. The court held that it would be a rare circumstance where the court would not require an expert opinion with respect to these kinds of claims. The case also reinforces the principle that a lawyer’s duty to the client may go beyond the specific scope of the retainer agreement.

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